Divided Court affirms, as discretionary, a “pet allocation” that factored the husband’s denial of visitation during separation. in disregard of “Zola’s emotional attachment to wife”

 LaRiviere v. Shea, 2023 VT 33 

CARROLL, J.  Husband appeals a final order granting wife ownership of the family dog in this divorce action. We affirm.

Section 751 of Title 15 gives the family division authority to order an equitable division of marital property after considering all relevant factors.15 V.S.A. § 751(b) ("In making a property settlement the court may consider all relevant factors, including [statutory criteria]."); Hament .v. Baker, 2014 VT 39 , ¶ 7.

On appeal Husband argues  that the trial court  misapplied the pet-allocation factors set out in Hament and authorized by § 751(b).

Because  few of the statutory factors apply to pets, Hament held that  § 751(b) “permits the consideration of additional relevant factors.” Id. ¶ 12. We outlined two factors not in the statute that were appropriate for courts to consider in this context: “[1] the welfare of the animal and [2] the emotional connection between the animal and each spouse.” Id. ¶¶ 12- 13  The family division enjoys wide discretion when dividing property and must only “provide a clear statement as to what was decided and why” Id.

The court found the parties adopted a dog together before their marriage, which they named Zola. Zola appeared to be emotionally attached to both parties. Each regularly spent time with Zola and maintained a strong emotional bond to Zola They shared equally in the expenses and care for Zola until the spring of 2021. When the parties first separated, each agreed to have Zola every other week on an alternating basis. After moving out of state, however,  husband  unilaterally and without explanation cut off wife from contact with Zola.

The trial court correctly identified 15 V.S.A. § 751 and Hament as the appropriate authority and provided a clear explanation about what it decided and why. Applying the two Hament factors, the court found that husband and wife were each able to meet Zola’s needs, including providing play time and medical care. The court found that each party had strong emotional bonds with Zola, although wife’s bond seemed to be greater. The court was troubled by at husband’s unilateral and unexplained decision to cut off contact between wife and Zola, stating it “call[ed] into question his regard for the emotional attachment that Zola feels toward [wife].” On balance, it concluded that the two factors favored assigning Zola to wife. 

This satisfies  Hament, which merely requires a clear statement about what it decided and why. Id. ¶ 7,  ¶ 20. 

The dissent mischaracterizes a single finding—husband’s disregard for wife’s emotional connection to Zola—as engaging in a custodial best-interests analysis, which would be unlawful in this context See Hament, 2014 VT 39, ¶ 10 (“In contrast to a child, a pet is not subject to a custody award following a determination of its best interests.”). Neither party raised the question the dissent focuses on, and the trial court did not consider it. Husband’s disregard for wife’s emotional connection to Zola is inherently a finding relating to Hament’s factor regarding “the emotional connection between the animal and each spouse.” Id. ¶ 13

Even if we were to find that disregard for Zola’s feeling toward wife does not neatly fit into either Hament factor -- though it plainly relates to both -- we would affirm the court’s decision. Nothing in Hament  limits the family division’s discretion to certain factors  As discussed, § 751(b) and Hament both permit the court to fashion an appropriate order based on “all relevant factors.” The trial court has considerable discretion in this posture and, absent entirely withholding its discretion or exercising it for clearly untenable or unreasonable reasons, we will affirm.

For these reasons, the court did not err in awarding Zola to wife.

 Affirmed.

 COHEN, J., dissenting. I would reverse and remand on the grounds that the trial court’s decision exceeded the scope of the factors identified in Hament, ¶ 13 for determining pet ownership in divorce proceedings. The court applied a best-interests standard appropriate when determining child custody but inappropriate for pet allocation.

It is inappropriate and an abuse of discretion to allow best-interests factors to seep into a property-division analysis beyond the two pet allocation factors this Court has already indicated are appropriate. See Hament, ¶ 13. Whether or not husband has regard for the emotional connection between Zola and wife is irrelevant to the pet-allocation analysis.

This Court already held in Hament that a property-division proceeding cannot end in shared ownership of a pet; it would be logically inconsistent to then rely on compliance (or lack thereof) with a shared-ownership agreement as evidence weighing in one party’s favor in such a proceeding. Id. ¶ 6.

Further, regard for the emotional connection between the pet and the other party is categorically unnecessary when considering pet ownership.

The trial court impermissibly considered factors beyond the scope of Hament. I would therefore remand for the court to reconsider the evidence under the correct legal standard.  I am authorized to state that Justice Waples joins this dissent.

How cited

SCOVT NOTE.  Hament held the welfare of the animal may be considered in final disposition, also noting, "Like most pets,[a dog's] worth is not primarily financial, but emotional; its value derives from the animal's relationship with its human companions."  

In addition to confirming that the statute expressly permits consideration of relevant factors other than those enumerated in § 751(b), Hament  held the Family Division has no authority to impose an enforceable joint custody or visitation order for a dog. An order of "pet allocation" is a final property division order not subject to modification. Even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division:

Divorce has few concrete advantages for the parties, but one of the greatest is that they are no longer compelled to be in contact over the care and use of their property or the way they spend their time.

Hament ¶ 19. (Crawford, J.)